Should We Allow Consumers To Sell Their Souls?

from the consumer-protection dept

To prove a point about how few people actually read the "terms and conditions" when making a purchase online, British game retailer GameStation decided to play an April fools joke on its customers, tricking many of them into agreeing to hand over the rights to their soul. GameStation's current terms require online purchasers of its products to agree to the following:

By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions.

The company provided a simple opt-out check-box and inferred from the number of shoppers who didn't click the box (about 88%) that very little attention is paid to such agreements. The fact that so few people read the contracts they sign is not exactly news, but the troublesome part is that these contracts are generally enforced -- although, in this case, GameStation admitted that they would not hold customers to the "immortal soul" clause. Contract law is founded on the notion that we are all free and equal individuals left to our own devices to enter into whatever transactions we wish. Moreover, many believe that any limitations on what individuals can be allowed to agree to (within certain well-accepted limits) are counter to economic wisdom. But when we face up to the fact so few people actually read these agreements, sooner or later we're likely to have to admit that some limits on what retailers can require in these agreements may make sense.

That fine

In a free market economy, such transactions should not concern the legislature. The market will set the price for souls, according to the laws of supply (billions available)and demand (only satan and presumably god want souls). A video game for your souls sounds just about right, in these conditions. The real question here is how to sell your soul more effectively?

The thing is you have to connect with your fans (the devil or god) and give them a reason to buy high. Settling for the old fashioned way of working through a recognized label (Roman Catholic, Jewish, and so on) just won't work in this day and age...

"Contract law is founded on the notion that we are all free and equal individuals left to our own devices to enter into whatever transactions we wish."

Only if you define 'transaction' as an exchange of what the individual is able to be alienated from, i.e. their property, not their natural rights (life, privacy, truth, liberty).

NB Labour is a condition to a transaction, it cannot be forcibly extracted (qv slavery). Similarly, people cannot bind themselves to perform future actions with promises since they cannot alienate themselves from their liberty. We can agree that if I wash your car you'll pay me $10, but I cannot promise to wash your car next week (however much you pay me today), since I cannot alienate myself from my liberty not to wash your car (refunding your payment). As far as individuals are concerned, making and keeping promises is purely a matter of reputation, not bondage. Corporations (having no liberty) can of course promise to do what they like in a contract.

As for purchase of products, if the transaction is clearly portrayed as a simple exchange of money for goods, then it would be deceitful to induce the purchaser's agreement to an additional and unrelated exchange.

Re: How long...

Then they wouldn't be adhering to the faith they proclaim, if they did that. I just wish folks like you could learn to separate the two. And not make gross generalizations, as well. I'm not Catholic myself, but I can tell you that simple probability states that not all individuals of a certain group act a certain way, ie, not all priests are molesters.

You're skeptical of the press, and rightly so, but whenever they play up such things and such numbers to create a moral panic around this issue, you devour them as though they're gospel. Ironic, yes? Accused does not mean guilty, or is it only when they share your beliefs? At least some of the time, I'd bet that it's sometimes the "victim" bringing false charges against the priest. Not always, but odds are it happens at least some of the time. Yet never do I see you or anyone like you admitting that possibility. Always lynch the priest, yes? Because it's easier on your worldview that way. No threat to it that way. Easier to believe all priests are molesters than to admit you might be wrong about more than just that. At least it seems to be that way for you.

There is no "sanity clause"

Even if I were to read the complete text of the several online licenses I click through each week, there is no way for me to understand the implications of the word choices the author made as I am completely unfamiliar with the relevant case law.

The author may have included (or omitted) specific phrasing in order to sculpt the meaning of the agreement. I would have to have, first, the base skill set in legal research and, second, the time to do the research in order to fully understand the implications of the license terms I click to accept.

Re: That fine

just visiting techdirt is like selling your soul. So many different companies collect information on you. now crowdscience is tracking all users. another one of the masnick do as i say not do as i do things. why do many third party actions on your site mike?

Because we assume it's the usual yada yada

I remember 20+ years ago some game company put a clause in their shrink wrap license saying basically "if you pirate this software, you hereby agree to forfeit your immortal soul to the devil".

It was VERY prominent - they wanted you to see it. The company claimed that this cut down on piracy very significantly - I've always wondered why more vendors don't do that.

Users don't read licenses because we assume it's the usual yada yada mandated by the lawyers. Plus, we assume that any "unreasonable" terms wouldn't be enforced by a court - which I think is the case with click-thru licenses.

It would be far better if some respected organization developed a "standard" click thru license with "reasonable" terms which could be referenced - so the license becomes:

[ ] I agree to the Standard SW Licences Terms.

Then people would KNOW what they're agreeing to. And I think that would make more enforceable, too.

Re: There is no "sanity clause"

Furthermore compounding your trouble is the fact that the retailer from whom you purchased the media containing the software wants to treat that as a sale of physical goods (as well they should!) If you disagree with the license agreement and want to return the product for a refund, they have both incentive and a reasonable argument to decline you.

Re:

This is the internet. Everyone is a hypocrite. Sites like TD and Ars will complain about privacy violations and hidden information collection and on the same page load 27 different scripts from ad-sense and god knows who else.

But the thing is, this is the natural state of things. If you really don't like this fact, you can always get your news from another source. Use your views and impressions to let the market decide who is right.

The biggest problem is...

There is no way to renegotiate a contract using these systems.
Yes, there are plenty of Opt-Out options and if you don't like the limitations imposed upon you by the contract then you just don't buy the product.
People don't read the contracts anymore because they can't affect them and regardless of what you buy, almost everything comes with some crazy contract attached to it and you have no choice but to except the terms or go without.
If I could cross out a line or two, make an adjustment here or there to put some protection in for myself as the consumer and then send it back to the supplier/manufacturer for their approval... then maybe I'd be more inclined to read the damn things.
Personally, I scan all of the contracts to make sure there is nothing that will infringe on my personal privacy that I can't opt out of before I buy. trying to affect anything else is useless in today's business focused society.

Re:

Or how about this? Is a market more efficient when there is a vast imbalance of information between buyers and sellers? When you go to any given site and consider consuming their content, you are not told what will be collected from your computer, who it will be sold to, or how it will be used. Website operators know this, but the visitors do not, thus inefficiency is introduced because factors that would affect consumption are hidden from the consumers.

Soul separation society

Re: Re: How long...

First, I think it was pretty obvious he was kidding. Second, I don't recall even the most hysterical people claiming all or even most priests are abusive. That's just a strawman. Third, the Church found that from 1950 to 2002, 4% of US priests were involved in sex abuse. This is the church substantiating allegations against their own priests, not the press hyping up numbers to create a scare. I don't know about you, but I find that to be a shockingly high number. 1 in 25 priests was a molester.

Re:

We can agree that if I wash your car you'll pay me $10, but I cannot promise to wash your car next week (however much you pay me today), since I cannot alienate myself from my liberty not to wash your car (refunding your payment).

I seriously doubt US contract law prohibits payment in advance of services rendered, which is what you're claiming.

how exactly are you going to A)prove that i even have a soul to begin with (whats the worst they could do... send me to collections?) and B)any attempts to collect said soul would be considered attempted murder or at the very least some form of assault if collection is unsuccessful and murder if it is successful which pretty much renders the issue of collection to be unenforceable anyway.

(at least thats the line im having my lawyers go with when they come to try and collect)

Re: Re:

His example was not very good. You can bind yourself to a future action, but not servitude. Basically, you have to bind yourself to a known action "washing a car" rather than an unknown action or set of actions "will do whatever you want for three days".

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The agreement is that the payment is equitable exchange for the service. Either the service is provided or the payment is returned, but the payee (if an individual) may not be forced to provide the service.

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it is just funny as hell to see. the masnick really doesnt follow his own rules and in fact has added new trackers to his site in the last little while. i wonder why there are so many third parties getting information for free from techdirt?

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Lots of contracts may be for services 'to be delivered', but a contract cannot bind an individual to a future action (because that would alienate the individual from their liberty - which contracts cannot do).

E.g. "If you pay me $10 now, I will wash your car tomorrow" does not bind me to wash your car. It simply initiates an exchange contingent upon future labour. If the labour doesn't happen the exchange is unable to complete and thus reverts to the situation prior.

Granted a lot of people like the idea they can get someone to sign on the dotted line and become thus entrapped into bondage, but then no doubt a lot of people like the idea of slavery. Many like the idea of a privilege over someone else, but not so much of others having a privilege over them.

Just remember that liberty is inalienable, and cannot be exchanged through contract. Even if you wanted to surrender your liberty, it would be an injustice for any court to uphold it.

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I spend my lunch break catching up on tech news from Techdirt (or a competetor). My ad impressions are what is at stake. Techdirt has information that would affect what site I go to (we sell your information to company XYZ). That information could be: disclosed or witheld. By witholding that information, I am unable to make an informed decision as a consumer and I am forced to decide on what information is available to me. If I had perfect information, I may have behaved differently. How does witholding information because you know it will negatively affect a sale not introduce a market inefficiency?

Re: Back OT...

Re: You can't contract to wash my car next week?

Of course you can. If you don't, you're in breach, and refunding the money I paid won't make it otherwise.

And we contract away our privacy and liberty all the time. If you don't show up and perform your employment contract, you're in breach even if your reason for doing so is to enjoy your liberty. If you sign away access to your web browsing history, you've forfeited a good amount of privacy. We're not talking forcible extraction; we're talking mutual agreement. The problem is that we treat as mutual agreement situations in which we know it's a pure fiction.

Re: Re: You can't contract to wash my car next week?

I think you'll find it's simply that you believe you contract away your privacy and liberty all the time (there's little incentive for those you believe you've contracted away your rights to, to disabuse you of this foolish notion).

Working for an employer is entirely voluntary. You are at liberty to stop working any time you please. Your employer can't force you to work simply by paying you money, or simply by saying "You signed a contract!".

Ones 'browsing history' isn't a good example of private information, since your ISP is necessarily privy to your use of their communications channel (you can utilise a VPN of course). NB Privacy is not the same as discretion.

Try coming up with some 'slam dunk' examples of people signing away their privacy or liberty.

wtf? says an atheist

Honestly, isn't this article a little silly? Even if you actually believe in a "soul," why would you think that a temporal agency could exercise any right over a non-material item?

Look at this from my viewpoint. I could claim that everyone had an invisible, intangible, undetectable limb called the "angel arm." I could further claim that the angel arm contains all of your "psychic power." Then I could write up a contract in which you cede all rights to your angel arm to me in perpetuity, allowing me sole access to your psychic energies.

Sounds silly, right? Granted, if a billion people repeated this nonsense for 2,000 years, it might not sound quite so silly to everyone. But that doesn't make it any less so.

Re: Re: Re: Re: You can't contract to wash my car next week?

Enlisting in the military is a good example (YJMV), but not to demonstrate a good case for being able to surrender one's liberty, but as an example of the state colluding in it for its own interests. But, then there's extraordinary rendition, Guantanamo, drowning/waterboarding, so the military are the last to look to when it comes to demonstrating legal standards for protecting civil rights.

As for NDAs, a non-disclosure agreement cannot enable an individual to surrender their freedom of speech (YJMV). Breach of an NDA may well be grounds for dismissal, and adherence may be rewarded, but these consequences do not impinge on liberty. For an individual to be prosecuted for breaching an NDA would be an injustice, and so the enforceability of NDAs against individuals remains controversial.

The Jokes on Game Station

I already have a third mortgage on my soul.They will just have to give me a seat and a game controller in Purgatory. Pardon the expression "For God Or His Brother Knows How Long". Until they get all the legal paper work straightened out I guess. Tell Saint Peter at the Golden Gate I just hate to make him wait but I've just got to have another cigarette.

Re: Re: Re:

Actually if their has been an offer and then an acceptance to provide services for a promise of consideration (money), and then that money has been paid then the other parties(s) to the contract are bound by their original intention to perform. They need to provide the service or goods in a reasonable manner set by the promise they agreed to. Otherwise estoppel can be applied and remedies from forfeiture of that contract can be applied also.

All a contract is, is a promise by one party to another. The contract has to be first offered then accepted. The parties have to have capacity to make the contract and their needs to be consideration (ie: something given for something gained) and an intention for all parties to fulfil the contract. The only other parts is it needs to be lawful under the jurisdiction.

Though a contract cannot be for past events, it definitely CAN be for future events that are agreed upon.

Whether these future events infringe on the 'rights' of one or both of the parties at the time of the future event is an issue that needs to be considered by the party that is going to have to meet and comply with those future events. If they don't, well that's what damages are for.

Re: Re: Re: Re:

One can effectively 'promise' property because it is alienable (and substitutable), but one cannot promise action (if anything, because one cannot determine or predict the future, let alone alienate oneself from one's liberty).

It may seem a subtle difference:
a) An advance payment conditional on one party's future action.
b) Money in exchange for one party's submission into bondage to perform a future action.

The former is a contract, the latter is an injustice.

I appreciate that a lot of people think of contracts as promises, but this is a corruption. The law cannot compel people to carry out their promises, just as it cannot compel racers to win the races they promise they'll win. A promise is an informal commitment, not a legally recognisable one. The repercussion is loss of reputation, not prosecution.

A contract is an agreement to make an equitable exchange of what can be exchanged, subject to conditions (but not bondage). Either the exchange is made or it isn't - it is voluntary after all. The law only needs to become involved in the event that the parties are unable to achieve equity (not that either party did not keep a promise). It may also need to become involved in the event that shysters have hoodwinked the gullible into believing they can sign or 'promise' themselves into bondage (or their immortal souls away).

Re: Re: Re: Re: Re:

Whether it is an injustice or not is for society and by extension the courts through precedent(s) to decide

Though allowing oneself knowingly to be committed to a 'bondage' when it is lawful under the contractual law of your jurisdiction (remember that not all common law countries have same contract law, let alone the non common law countries) is why people should ONLY sign when they are fully aware of what they are signing. Which I believe is the crux of what this article was all about.

Yes the law (civil court, or court of equity) also has an obligation to disallow unlawful conditions (ie: murder, fraud, misrepresentation, unconscionable practices, etc).

Though I would draw your attention to promissory estoppel (or just 'estoppel') to what the 'law' can demand and exercise.

As for 'bondage' on future actions. Wouldn't that also include the contract that is entered into on Settlement cases. The promise not to talk, nor perform further 'legal' actions in lei of upfront consideration/payment.

Absolutely legal in nearly ALL jurisdictions, though maybe not just and definitely not ethical all the time.

Crosbie I do not disagree with you that it is in a lot of cases unjust, just that I know it is lawful. Also contracts have and always will be ever since the first contractual legal entities were created way back in the 1500's an act of promise. And a promise by it's very nature is a future event. As for an informal commitment not being a legally recognised one, the last 300years of common law legal crapola ;) would beg to differ.

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I don't doubt that the law can be abused and many injustices are upheld, but the law should be determined by a better principle than the accretion of expedient precedent.

We have to say that liberty is a priori inalienable - if anything, to remind judges that individuals cannot sign it away in contract. It cannot be up to the layman to be wary that they do not unwittingly sign away more than their property, e.g. a pound of flesh, or indentured servitude.